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[2011] ZAGPJHC 150
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Nienaber v Road Accident Fund (A5012/11) [2011] ZAGPJHC 150 (27 October 2011)
NOT REPORTABLE
SOUTH
GAUTENG HIGH COURT
(JOHANNESBURG)
CASE
NO: A5012/11
DATE:27/10/2011
In the matter
between
ANULA
NIENABER
...........................................................................
APPELLANT
and
ROAD
ACCIDENT FUND
…..........................................................
RESPONDENT
Appeal
- against award of loss of future earning capacity in a claim against
the Road Accident Fund – opinion of medical expert
witness as
to possible early retirement although agreed between the parties not
binding on Court – opinion relevant only
as a factor in
consideration of contingency allowance - contingency allowances by
Court a quo in “but for” scenario
(15 percent) and “as
a result of the accident” (25 percent) scenario confirmed on
appeal – misdirection by Court
a quo as to factual basis for
actuarial calculations – fresh calculation based on appellant’s
actuarial calculations
– higher amount awarded on appeal -
appeal upheld in part.
J
U D G M E N T
VAN
OOSTEN J:
[1]
This is an appeal against an award made by Mayat J, in this Division,
in respect of the appellant’s future loss of earning
capacity.
The appeal is with leave of the Supreme Court of Appeal.
[2]
The appellant’s claim against the respondent arose from
injuries she sustained in a motor vehicle collision. The learned
Judge a quo was only required to assess the award in respect of the
appellant’s future loss of earning capacity as the merits
and
all other heads of damages had become settled between the parties. It
was not in dispute that the appellant in fact suffers
a loss of
earning capacity. The issues under this head of damage in essence
concerned firstly, the appellant’s estimated
age of retirement
and secondly, the computation of the quantum.
[3] The appellant was 34 years old at the
time of the trial and was employed as acting project manager at
Transnet. It is common
cause that she, in terms of her employment
with Transnet, would have retired at the age of 63 years. Dr Marais,
an orthopaedic
surgeon for the plaintiff, in his medico-legal legal
report, which was admitted and handed in by consent, introduced the
notion
of the appellant’s possible early retirement. In this
regard he opined that “common sense and reasonable justice
dictates
that [the appellant] should be allowed a period of decreased
work life expectancy of five years” resulting in the
appellant’s
retirement age being estimated at 58 years. The
opinion was parroted by some of the respondent’s expert
witnesses and eventually
served as the accepted foundation for the
appellant’s actuarial calculations. The learned Judge a quo
however, on this aspect,
concluded that the assumption made by Dr
Marais was evenly balanced as against the possibility that the
appellant might work beyond
the age of 58 and accordingly held that
this was one of the factors to be considered in the making of a
contingency deduction.
Contingency allowances of 15 percent but for
the accident and 25 percent having regard to the accident were made
only the last
of which was attacked on appeal, to which I shall
revert after having dealt with the actuarial calculations.
[4] Counsel for the appellant submitted
that the opinion of Dr Marais, uncontested and admitted as it was,
should be afforded the
same weight as an admission and that it
therefore, should have been accepted as such by the Court a quo. I do
not agree. The Court
is not bound by the admissions made by one party
regarding the expert evidence proposed to be tendered by another
party. The evidence
of expert witnesses cannot be allowed to usurp
the function of the Court. It is for the Court to ultimately decide
whether an expert’s
opinion is to be relied on or not and to
determine what weight, if any, has to be afforded to it. The Court
must not blindly accept
expert testimony. It is obliged, even where
expert evidence is so technical that the average judicial officer
would not be able
properly to reach an unassisted conclusion, still
to decide whether it would be safe to accept the opinion or not (
see
Joubert (Ed)
LAWSA
Vol 9 para 713).
[5] The opinion of Dr Marais was
essentially based on some statistical information, published in the
United States of America, he
had obtained concerning work life
expectancy that he projected on the appellant’s situation
having regard to the degree of
disability she suffers from. That of
course did not elevate the opinion anywhere beyond mere speculation.
The possibility of the
appellant’s early retirement, raised by
Dr Marais, is but one of the vicissitudes of life, or as it has also
been referred
to,
“
…hazards
that normally beset the lives and circumstances of ordinary people
”
(
AA Mutual Insurance v Van
Jaarsveld
1974 (4) SA 729
(A))
which is taken into account in the making of a contingency allowance
(
Southern Insurance Association
Ltd v Bailey NO
1984 (1) SA 98
(A) 116G-117A). For these reasons it cannot be said that Mayat J
erred in the approach she adopted.
[6] This brings me to the different
actuarial calculations handed in by way of agreement. Mayat J
preferred and accepted the actuarial
calculations made by the
respondent’s actuary. On appeal counsel or the appellant
submitted that the respondent’s actuarial
calculation was
flawed in its premise. The respondent’s actuary, for one,
ignored the appellant’s promotion to project
manager with the
resultant salary increment a year prior to the date of accident
having a cascading effect on the resultant calculations.
The
criticism is well-founded. The Court a quo accordingly misdirected
itself in accepting the respondent’s actuarial calculation.
The
basis for the appellant’s actuarial calculations furnished to
us by counsel for the appellant, in my view, properly accounts
for
the appellant’s loss of future earning capacity which
accordingly, should have been accepted by the court a quo.
[7]
The Court a quo awarded the sum of R739 470-20 in respect of the
appellant’s future loss of earning capacity. A fresh
calculation must now follow in view of the misdirection I have
referred to. On the appellant’s actuarial calculations the
value of the appellant’s future income, uninjured, is R8 605
974.00. A contingency allowance of 15 percent (which was agreed
is
reasonable), brings the net value to R7 315 078.00. As for the value
of the income as a result of the injury (R8 605 974.00)
it is only
necessary to determine the contingency deduction. As I have
mentioned, the Court a quo applied a contingency deduction
of 25
percent. The appellant contends for an allowance of 35 percent. In
this regard counsel for the appellant highlighted the
period of
altogether 4½ months the appellant will be off work in respect
of anticipated future medical treatment which is
in excess of the
paid sick leave allowed by her employer, and therefore is to be
regarded as unpaid sick leave and the diminished
prospects of the
appellant progressing in her work situation as she was not as
productive as prior to the accident. I am not persuaded
that the
court a quo in any way misdirected itself and a 25 percent
contingency allowance in my view is both reasonable and proper
(see
Minister of Safety and Security v
Seymour
2006 (6) SA
320
(SCA)).
The allowance of a 25 percent
contingency brings the total net value of the appellant’s loss
in the “having regard to”
scenario, to R6 454 480.50. The
total award, being the difference between the two values, accordingly
is R860 597-50. To this extent
the appeal must be upheld.
[8]
The appellant has been substantially successful in this appeal and
the costs should therefore follow the result.
[9] In the result the following order is
made:
The appeal is upheld to the extent that
the amount in paragraph 1.2 of the order of the Court a quo is
substituted with the amount
of
R860 597-50.
The respondent is ordered to pay the costs
of the appeal.
_________________________
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
I
agree.
________________________
NF
KGOMO
JUDGE
OF THE HIGH COURT
I
agree.
________________________
VS
NOTSHE
ACTING
JUDGE OF THE HIGH COURT
COUNSEL
FOR THE APPELLANT:ADV PJ VAN DER BERG
APPELLANT’S ATTORNEYS
…....
:SNYMAN
LOTZ ATTORNEYS
COUNSEL
FOR THE RESPONDENT:ADV TD MASHABANE
RESPONDENTS’
ATTORNEYS
.........
:MABUNDA
INC
DATE
OF HEARING
...........................
:12
SEPTEMBER 2011
DATE
OF JUDGMENT
…...................
:27
OCTOBER 2011